That a man with unpaid-for cheese in his underwear could
ever have faced essentially the same sentence as Umar Farouk
Abdulmutallab is an absurdity.

By Sasha Abramsky

In an era of savage budget cuts to the most basic of public
services, does it make sense for a state to spend $50,000-$100,000
a year to lock up a cheese thief for the rest of his natural
life?

The obvious answer to that question would be "no."
After all, $100,000 could keep one or two teachers employed;
could pay the home-health care costs of disabled low-income Americans;
or could keep an after-school program afloat.

And yet, that is precisely what a grandstanding California
district attorney's office earlier this month suggested was an
appropriate solution for the problem that is Robert Ferguson:
a mentally ill, drug-addicted 53-year-old habitual offender who
has cycled in and out of prison for most of his adult life and
found himself on the wrong end of a three strikes prosecution
for the monstrous crime of stuffing a $3.99 bag of shredded cheese
down his underpants and hot-tailing it out of a Nugget supermarket
without paying.

Deputy District Attorney Clinton Parish argued that because
of Ferguson's past history, his inability to learn from his mistakes,
the public would be best served by putting him away for at least
the next 20 years behind bars -- in effect a life sentence for
a man of his age. Parish intended to push for a three strikes
ruling during a sentencing hearing scheduled for March 1.

Since it costs an average of about $40-$50,000 per year to
house an inmate in California, and upwards of $100,000 once they
get older and sicker, Parish was essentially asking the state
to pony up one to two million dollars to pay for Ferguson's incarceration
over the next several decades.

But a funny thing happened on the way to the forum

Three strikes and you're out has been a sacrosanct part of
the California legal system for nearly 17 years now. It has cost
the state a royal fortune and while it has undoubtedly put some
very hardened criminals behind bars, it has also snared an awful
lot of non-violent, middle-aged offenders in its net. It's like
industrial fishing -- sure, you get the tuna, but you also end
up destroying a huge number of fish you don't want or need.

Yet, the public has remained attached to the three strikes
law, DAs love the power it gives them, and attempts to reform
it, or to limit its applicability to more serious crimes, have
all failed. This time around, however, a number of newspapers,
including conservative publications such as the Orange County
Register, ridiculed the DA's office for its willingness to
waste taxpayer dollars.

Earlier this week, the Yolo County DA suddenly withdrew the
request for a Three Strikes sentence. Hostile press coverage,
of course, had nothing to do with it; apparently a new psychological
evaluation had convinced the office that Ferguson should no longer
be looked at as a "life case."

Three strikes is something that I have written on quite a
bit over the years; I have talked with many three strikers and
their families, and periodically receive updates from them on
their status. This past Christmas I got a card from the wife
of one inmate, who has spent the last 16 years behind bars on
a drug-related offense. "It is hard to believe that nearly
16-years have gone by and we still have another 12 before D**
will be eligible for parole," she wrote. "You would
think that with all of California's budget problems, someone
in Sacramento would realize that 16 years for a minor offense
is long enough."

The sense of futility in stories like these is what enrages
me most. Is society truly made safer, does the difficult work
of "healing" damaged people and broken communities
really get done, by imposing these outlandish sentences in the
name of justice? Did the Yolo County DA ever truly believe that
society would benefit from throwing away the key on a petty nuisance
like Robert Ferguson?

Enlightenment thinkers like Cesare Beccaria, Jefferson, or
Bentham, knew that for justice to be respected -- for the institutions
of state to be seen as fair rather than as simply terrifying
-- punishment had to be in some meaningful way proportionate
to the crime. Three strikes systematically dismantles the sense
of proportionality.

Sure, things worked out OK for Ferguson this time around because
of a few timely newspaper articles. But thousands of other low-end
offenders are already serving three strikes sentences, and as
long as the law remains on the books thousands more will likely
receive such sentences in the years ahead. That a man with unpaid-for
cheese in his underwear could ever have faced essentially the
same sentence as Umar Farouk Abdulmutallab, a man with plastic
explosives in his underwear with which he tried to kill nearly
300 people aboard a transcontinental aircraft, is an absurdity.

Three strikes is a moral blot on the California legal system
and, as the newspaper coverage of the Ferguson case pointed out,
it is responsible for wasting vast sums of taxpayer money. Increasingly
defined by the politics of austerity -- by lists of programs
that can't be maintained and infrastructure that is being left
to decay -- states simply cannot afford to keep such laws on
the books.

Sasha Abramsky is the author of Conned: How Millions Went
to Prison, Lost the Vote, and Helped Send George W. Bush to the
White House (The New Press, 2006).

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